Archive for May 9th, 2008
Private property
Not every culture in the world recognises the concept of private
ownership of property. Some religious communities require their
members to take vows of poverty. Communist nations famously do
not recognise the right of individuals to own land; that is a monopoly
of the state.
Much of the land in Fiji and neighbouring islands is owned by native
villages who by unwritten custom-law have no right to alienate the
ownership. The “common” lands attached to English villages are
held on the same principle. The native Indians of Manhattan
didn’t mean to sell their island outright to the earliest
Dutch settlers. They thought they were selling just the right to
use the land.
Nowadays, in Western nations, most land is owned by individuals as
“freehold”. The days are long gone since all lands were held by
permission of the local king, who could (and often did) refuse his
consent to a sale or bequest of “his” land. However, even in Western
nations, ownership of land and any buildings on it are not
absolute. “Freehold” doesn’t mean a king or a government can’t
take it back if they want to.
English “common law” is a nine-hundred-odd-years body of judges’
interpretations of the customs of the natives of England in 1066 –
that is, at the time of the Norman-French invasion and permanent
occupation. When the first formal written laws were
promulgated by the kings’ new national legislatures, called
parliaments, those customs were recognised as the existing law.
One of the common law’s recognised precedents in force today is that a
monarch or a government (the nation-state, in other words) has an
inherent right of disposal of all land, and the buildings on
it. Strange but true! This is called the right of eminent
domain or compulsory acquisition, and exists in opposition to any
absolute private ownership. It is not recognised by Article 17
of the Universal Declaration.
Why did the composers of the Declaration not allow for eminent
domain? It wouldn’t have caused too much fuss if they had.
It’s quite usual for governments to confiscate private property if
it’s for the good of the community as a whole – for roads, parks and
the like. Perhaps the composers hoped the word “arbitrarily”
(meaning despotically, in this context) would protect the ideal, at
least in the liberal-democratic countries.
The owner of George Town’s “ironwood forest” seems to be defying (so
far) the Cayman Islands Government’s wish to arbitrarily deprive him
of his property, and the Declaration clearly supports his
defiance. Interesting.
The trouble with the principle of “eminent domain” is that one can’t
trust politicians to use their discretionary powers either wisely or
fairly. Give them an inch and they’ll take a mile. Even
the most liberal and democratic-minded of them will defy even the
sacred right to life when it suits them to go to war, or arm their
policemen, or shoo Cuban boat-people out to sea to drown.
They will defy the prohibition of slavery when they conscript soldiers
for their wars, or force convicts to work for no wages, or turn a
blind eye to human-trafficking. They practise torture and evade
fair trials, when it suits them. And they confiscate private
property in the form of taxes, or to clear space for new roads.
Private property remains part of the Western ideal, but it comes with
conditions.